A A
B B
DCCC 1103/2023
C [2024] HKDC 2044 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 1103 OF 2023
F F
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G G
HKSAR
H V H
(2) WONG CHING TUNG
I I
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J J
Before: His Honour Judge Tam
K K
Date: 28 November 2024
L Present: Mr Fung Lap Tin, Leo, Public Prosecutor, for HKSAR L
Ms Lam Siu Yan, Yanky, Counsel instructed by Mike So,
M M
Joseph Lau & Co, assigned by the Director of Legal Aid, for
N N
the 2nd defendant
O
Offences: [3] Conspiracy to defraud （串謀詐騙） O
[4] Attempting to deal with property known or believed to
P P
represent proceeds of an indicatable offence（企圖處理已知
Q 道或相信為代表從可公訴罪行的得益的財產） Q
R R
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S S
REASONS FOR SENTENCE
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A A
B B
1. Before me, D1 1 and D2 2 faced various charges on a
C Charge Sheet as follows. C
D D
2. Charge 1 is Conspiracy to defraud against D1 only,
E contrary to Common Law and punishable under section 159C(6) of the E
Crimes Ordinance, Cap 200. Particulars are that D1, on or about 2 March
F F
2023, in Hong Kong, conspired with other persons unknown to defraud
G Chan Siu by dishonestly and falsely representing that the son of the said G
Chan Siu was in need of money in the sum of $65,000 Hong Kong currency
H H
in cash, thereby to induce the said Chan Siu to part with a total cash sum
I of $65,000 Hong Kong currency; I
J 3. Charge 2 (alternative to Charge 1) is Dealing with J
property known or believed to represent proceeds of an indictable offence
K K
(hereinafter “Money Laundering”) against D1 only, contrary to section
L 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. L
Particulars are that D1, on 2 March 2023, in Hong Kong, together with
M M
other persons unknown, knowing or having reasonable grounds to believe
N N
that property, namely a sum of $65,000 Hong Kong currency, in whole or
O
in part directly or indirectly represented any person’s proceeds of an O
indictable offence, dealt with the said property;
P P
4. Charge 3 is Conspiracy to defraud against D1 & D2.
Q Q
Particulars are that they, on or about 3 March 2023, in Hong Kong,
R conspired together with other persons unknown to defraud Siu Hung Ping R
by dishonestly and falsely representing that the son of the said Siu Hung
S S
T 1
D1 is Wong Yiu Man. T
2
D2 is Wong Ching Tung.
U U
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A A
B B
Ping was in need of money in the sum of $45,000 Hong Kong currency in
C cash, thereby to induce the said Siu Hung Ping to part with a total cash sum C
of $45,000 Hong Kong currency;
D D
5. Charge 4 (alternative to Charge 3) is Attempting to
E E
commit Money Laundering against D1 & D2, contrary to section 25(1) and
F (3) of the Organized and Serious Crimes Ordinance, Cap 455, and sections F
159G and 159J of the Crimes Ordinance, Cap 200. Particulars are that they,
G G
on 3 March 2023, in Hong Kong, together with other persons unknown,
H knowing or having reasonable grounds to believe that property, namely a H
sum of $45,000 Hong Kong currency, in whole or in part directly or
I I
indirectly represented any person’s proceeds of an indictable offence,
J attempted to deal with the said property; J
K K
6. Charge 5 is Failing to surrender to custody without
L reasonable cause against D1 only, contrary to section 9L(1) and (3) of the L
Criminal Procedure Ordinance, Cap 221. Particulars are that he, on 14
M M
May 2024, in Hong Kong, being a person admitted to bail, without
N reasonable cause, failed to surrender to custody as was appointed by a court. N
O O
Procedural history
P P
7. This case was fixed before me for plea and sentence of D1 and
Q Q
D2.
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A A
B B
D1
C C
8. Prior to the hearing date, I have through correspondence asked
D D
for written submissions from relevant parties, relating, inter alia, to the
E propriety of Charge 3 due to the potential issue of “conspiracy to do the E
impossible” in that PW2 Siu did not have a son.
F F
G 9. Prosecution, by way of letter dated 18 November 2024, made G
written submissions on the point.
H H
10. D1, by way of letter of even date, referred to the prosecution’s
I I
said letter and conceded to the prosecution’s position that Charge 3 was
J properly laid, without further submissions of his own. J
K K
11. At the hearing, before pleas were taken from anyone, I
L expressed misgivings about Charge 3 for the same reason as previously L
indicated.
M M
N N
12. I gave time to the prosecution to take instructions from the
O
Department of Justice. O
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13. Upon taking instructions, prosecution informed me that the
Q course chosen was to treat the matter as a not-guilty plea (though no pleas Q
had formally been taken from D1) and a trial date was to be fixed at the
R R
plea court. D1 had no objection to the proposal. A date was then fixed for
S D1 to appear at the plea court for the purpose of fixing a trial date. Before S
D1 was sent back into custody, parties had the consensus that no pleas
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A A
B B
needed to be taken from D1 meanwhile, and that all the charges including
C those that D1 was intending to plead guilty to should be dealt with together. C
D D
14. Before leaving the matter, it ought to be mentioned that
E counsel indicated that D1 was willing to plead guilty to Charge 3 or Charge E
4; however, prosecution indicated that they were not willing to accept D1’s
F F
intended plea to Charge 4.
G G
D2
H H
I 15. D2 pleaded not guilty to Charge 3 but guilty to its alternative I
Charge 4.
J J
K 16. After convicting D2 of Charge 4, I acquitted him of Charge 3 K
because the prosecution accepted D2’s conviction of Charge 4 as
L L
satisfaction of the charge sheet as against D2.
M M
Facts admitted by D2
N N
O Charge 4 O
P P
17. On 1 March 2023, at about 9:30 am, PW2 Siu, then aged 66,
Q received a phone call. A male (“Male B”), who claimed to be a son of Q
PW2, told PW2 that he had changed his phone number.
R R
S 18. PW2 who had no son knew at once it was a scam call. S
However, he went along and made up a fake name “Ah Kuen” as his
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A A
B B
supposed son’s name. PW2 did this in the hope of bringing the culprit to
C justice. C
D D
19. On 3 March 2023, at about 9:45 am, Male B again called PW2
E and claimed that he had been arrested by the police and needed $100,000 E
cash as bail money. Although PW2 had $100,000, he told Male B that he
F F
only had $20,000 to $30,000. Male B replied that $30,000 would be
G sufficient as he could borrow the balance from friends. Male B further said G
that a lawyer friend named Chan Wai would contact PW2 to arrange for
H H
the collection of the money.
I I
20. At about 10 am, it was Male B who called again. Male B
J J
asked if the cash could be collected right away. PW2 replied he would get
K back once the money was ready. K
L L
21. At about 1:15 pm, PW2 reported the case to the police. A
M controlled meeting was prepared for dummy cash (comprising of valueless M
material) to be handed over to the culprit.
N N
O 22. At about 1:40 pm, acting on instructions of the police, PW2 O
got back to Male B indicating falsely that cash was ready. However, at this
P P
point, Male B asked for a larger sum and after some negotiation, the
Q additional amount came down to $15,000. Q
R R
23. At about 1:45 pm, Male B called again indicating a
S Superintendent Chan would contact PW2 shortly. S
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A A
B B
24. Instead of waiting for the call, PW2 took the initiative to call
C Male B not long afterwards. Male B took up the phone but then passed it C
over to Superintendent Chan who confirmed that Ah Kuen could be
D D
granted bail on condition of $45,000 bail money. Male B spoke again and
E told PW2 not to tell anyone about the matter and said someone would be E
coming to collect the cash from PW2.
F F
G 25. At about 2:26 pm, a male claiming to be Chan Wai called G
PW2 and asked where the bail money could be collected. The parties
H H
agreed to meet up at the lobby of Block 28 of Heng Fa Chuen.
I I
26. At about 2:40 pm, a Male C and D2 were wandering outside
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Blocks 28 and 29 of Heng Fa Chuen.
K K
27. At about 3:02 pm, Chan Wai called to say he would arrive
L L
soon.
M M
28. At 3:05 pm, Male C approached PW2 claiming himself to be
N N
Chan Wai. Male C passed to PW2 a mobile phone saying at the same time
O Ah Kuen would like to talk. PW2 picked up the phone and asked the O
opposite party if the cash should be passed over to Male C. After getting
P P
the go-ahead, PW2 passed over the dummy cash to Male C at the same
Q time asking Male C to take care of Ah Kuen. Male C said he would and Q
left. Male C then walked towards Heng Fa Chuen Post Office with D2
R R
following him.
S S
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A A
B B
29. A few minutes passed before D2 was stopped and arrested in
C the vicinity. The dummy cash was recovered from a sling bag carried by C
D2. Under caution, he said he was instructed by one “Zero” to collect
D D
money from Male C and he was promised $500 reward for his labour.
E E
30. D2 knew or had reasonable grounds to believe that the dummy
F F
cash originated from the telephone deception.
G G
31. D2 now admits that, on 3 March 2023, in Hong Kong, he,
H H
together with other persons unknown, knowing or having reasonable
I grounds to believe that property, namely a sum of $45,000 Hong Kong I
currency, in whole or in part directly or indirectly represented any person’s
J J
proceeds of an indictable offence, attempted to deal with the said property.
K K
Criminal record
L L
M 32. D2 has a clear record. M
N N
Antecedents
O O
33. D2 is aged 25 (23 at the time of the offence), educated to F3
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level, and working as a cook. He has a younger sister studying in college.
Q D2 is living with his divorced mother in public housing in Choi Hung. Q
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Mitigation
C C
34. Ms Yanky Lam of counsel assigned by the Director of Legal
D D
Aid mitigated on behalf of D2. The following is a summary of the
E mitigation submissions. E
F F
35. D2’s parents, maternal grandparents and maternal uncle are in
G court to give D2 emotional support. G
H H
36. D2 pleaded guilty to Charge 4 having indicated the same
I months ago; he is entitled to 1/3 discount on his sentence. D2 has no I
objection to the prosecution’s application regarding enhancement of
J J
sentence.
K K
37. D2 has a clear record with good character and comes from a
L decent family. D2 feels deeply remorseful for his misdeeds; in particular, L
he feels sorry for the victim.
M M
N N
38. D2 is single and he has been and still is working as a restaurant
O
chef earning $15,000 per month. O
P P
39. D2 has been living with his divorced mother as his younger
Q sister is studying in a university away from Hong Kong. D2’s natural Q
father left the family long time ago so D2 and his younger sister were
R R
brought up by their mother single-handedly. D2’s step-father passed away
S in January 2024 due to cancer. D2’s mother’s medical condition is stable S
after receiving some medical treatment.
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A A
B B
40. D2’s mother had to take up different jobs to make ends meet.
C Due to heavy workload, she could only spend very little time with D2 and C
his younger sister when they were young resulting in minimum parental
D D
supervision and guidance on them. D2 became introvert and seldom shared
E his inner feelings with his mother in his teenage. D2 mingled with his E
friends and peers and was easily influenced by others.
F F
G 41. D2 was not acquainted with D1 ie Male C before the G
commission of the offence. D2 was asked by a male called “Zero” to
H H
collect money from Male C for a reward of $500. During investigation,
I D2 provided the contact number of Zero to the police. Subsequently, Zero I
was arrested but not charged.
J J
K 42. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of K
Appeal took into consideration the following:
L L
M “There are no sentencing guidelines for the offence of dealing with the M
proceeds from an indictable offence because the facts vary from case to
case. However, the following factors are to be taken into account when
N determining sentence: N
O O
(a) It is the amount of money involved that is a major consideration and
not the amount of benefit received by a defendant in the transaction.
P P
(b) The culpability of the offence lies in the assistance, support and
Q
encouragement offered to the commission of an indictable offence. So a Q
defendant’s level of participation and the number of occasions on which
he is involved in the “money laundering” activities are relevant factors
R to be considered. R
(c) The offence of dealing with the proceeds from an indictable offence
S S
does not necessarily have any direct correlation with the indictable
offence in question. However if the relevant indictable offence can be
T identified, the court may take into account the sentence imposed on the T
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A A
B indictable offence per se when determining the sentence of the dealing B
offence.
C C
(d) If the case has an international element involving activities carried
out across different regions, the court may impose a more severe sentence.
D This is to protect Hong Kong’s reputation as an international finance and D
banking hub from being tarnished.
E E
(e) The length of time the offence lasted.”
F F
43. In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal
G held that given the highly variable circumstances in which the offence G
might be committed, it was difficult and undesirable to offer guidelines.
H H
This was a category of offence which called for the sentencing judge to
I engage his “feel” for the case and his sentencing experience bearing in I
mind always the mischief at which the legislation was directed. The best
J J
one could do was to draw the attention of judges to relevant sentencing
K considerations (see paras 25, 34 and 39). K
L L
44. Having said so, the Court of Appeal held that it would be
M helpful to identify some of the significant features for which the Court M
should look and take into account, though it is not possible to produce an
N N
exhaustive list:
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P
(i) The nature of the predicate offence, if known, and the P
penalty available for the predicate offence;
Q Q
R (ii) This brings us to the question of the state of knowledge R
of the offender. This divides itself in two – knowledge
S S
of the nature of the predicate offence, where the
T predicate offence is known to the court; and knowledge T
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A A
B B
of the fact that the funds are the proceeds of an
C indictable offence; C
D D
(iii) An international dimension will always be a significant
E aggravating feature; and by international dimension we E
include money laundered from, or for those operating
F F
in, the Mainland;
G G
(iv) The sophistication of the offence is always relevant.
H H
This will include the degree of planning and whether
I deceit is practiced to achieve the objective; I
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(v) Where the offence is committed by or on behalf of an
K organized criminal syndicate, that is an aggravating fact; K
L L
(vi) It is relevant to take into account whether there is one
M transaction or many and the length of time over which M
the offence was committed;
N N
O (vii) As in the case of Secretary for Justice v Herzberg, it O
will be an aggravating feature where the offender
P P
continues to launder funds after he has discovered as a
Q fact that the funds are the proceeds of an offence or after Q
he has discovered the nature of an offence which is
R R
serious; and
S S
(viii) The sentencing court should have regard to the role of
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the offender and the acts performed by him. In this
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regard, the director of a laundering operation or scheme
C should attract a greater sentence than a person engaged C
by him although sentences should be sufficient to deter
D D
those who might be prevailed upon by directing minds.
E In the case of a person down the chain, the Court will E
wish to have regard to whether a benefit has been
F F
received and if so the nature and size of the benefit. But
G within the category of persons down the chain there G
will be gradations of culpability. So for example the
H H
drug addict or petty crook who is paid a small sum to
I open an account and hand over its operation to another I
with no more participation and no more knowledge
J J
than that it is going to be used for some sort of crime is
K much less culpable than an offender of a different sort K
not “used” in that way.
L L
M 45. Phone deception case is more serious than a common street M
deception case and the Court should adopt a higher starting point in
N N
sentencing for deterrence. The Court of Appeal in HKSAR v Hung Yung
O Chun [2011] 2 HKLRD 174 at para 182 held that the starting point for the O
case should be 4 years’ imprisonment.
P P
Q 46. There is nothing to suggest that D2 participated in the Q
telephone deception ie the 3rd Charge. The prosecution evidence was
R R
insufficient to show that D2 knew the details of the deception although
S admittedly he must have known the money was obtained unlawfully. No S
international dimension was involved. Save and except knowing Male C
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A A
B B
was involved, D2 would not know the details of the deception or who [else]
C was involved and thus it was not suggested that the offence was committed C
by or on behalf of an organized criminal syndicate. D2 was asked to collect
D D
money from Male C (not even from the victim direct). The amount of
E money laundered is not the be-all and end-all of a case but is a significant E
feature. The money involved in the present case was $45,000. It was too
F F
harsh to apply a starting point of 4 years: HKSAR v Cen Huakuo [2015] 2
G HKLRD 951. A starting point of 3 years involving the amount of $50,000 G
in that case was adopted.
H H
I 47. Ms Lam submitted on behalf of D2 a total of 13 mitigation I
letters written in Chinese by respectively (1) D2 himself; (2) his mother;
J J
(3) his younger sister; (4) his maternal grandfather; (5) his maternal uncle;
K (6) his maternal uncle-in-law; (7) another maternal uncle-in-law; (8) his K
maternal younger aunt; (9) a family friend; (10) his employer; (11) a friend;
L L
(12) a secondary-school mate cum good friend; and (13) another friend.
M The contents are generally that D2 has determined to change his ways and M
start afresh; that he is a gentle and helpful person who was respectful to
N N
elders and possessed good work ethics. The letter writers ask for a lenient
O sentence for D2 so he may become a useful member of society sooner. O
P P
48. Upon enquiry by the court about the topic of joint enterprise,
Q Ms Lam submitted that the role played by D2 was passive and minimal, Q
and he was not the ringleader.
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A A
B B
Sentence
C C
49. I have had regard not only to the authorities cited by Ms Lam,
D D
but also two other authorities of the Court of Appeal, namely HKSAR v Lin
E Zong Yue (official English translation), CACC 141/2014, and HKSAR v E
Chan Ho Kit (transliteration), CAAR 1/2024, [2024] HKCA 409, Chinese
F F
Reasons for Judgment.
G G
50. In the present case, D2 knew or had reasonable grounds to
H H
believe that the dummy cash he dealt with (by implication, the $45,000 he
I attempted to deal with) originated (unlawfully) from the telephone I
deception: Re-re-amended Summary of Facts para 23. So, he must have
J J
had at least some basic idea of the kind of evil or harm that was designed
K and exercised against the victim whom D2 would have witnessed and K
identified as a senior citizen at the scene of transfer of the dummy cash to
L L
Male C with whom D2 collaborated.
M M
51. Therefore, although this case lacks one particular aggravating
N N
feature present in Cen Huakuo (where the applicant came from the
O Mainland to commit crime here), I am of the view that the 3 years starting O
point adopted by the Court of Appeal on appeal for one charge of
P P
conspiracy to commit money laundering is still applicable to the present
Q case. Q
R R
52. For the avoidance of doubt, the 3 years starting point I have
S adopted already has the element of joint enterprise factored into the S
assessment.
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A A
B B
C 53. D2 pleaded guilty to the offence in good time and therefore C
enjoys the customary 1/3 discount on sentence. As the applicant in Cen
D D
Huakuo (see para 24 thereof), D2 cannot expect leniency from the court
E simply because he has no criminal record. In this type of case, the court E
would be slow to grant extra sentencing discount to a defendant with a
F F
previous clear record.
G G
54. There are no other mitigating factors of weight to justify any
H H
further sentence reduction.
I I
55. Pursuant to section 27(2) of the Organized and Serious Crimes
J J
Ordinance, Cap 455, the prosecution has sought to furnish information to
K the court relating to the prevalence of the offence subject of Charge 4 (sic); K
and the nature and extent of any harm, whether direct or indirect, caused to
L L
the community by recent occurrences of the said offence (sic).
M M
56. The information came in the form of a witness statement dated
N N
28 October 2024 under the hand of CIP Cheng Sze Wai relating
O specifically to telephone deception cases rather than to the offence subject O
of Charge 4.
P P
Q 57. From the table drawn up in para 21 of the statement, it can be Q
seen that the number of telephone deception cases with monetary loss went
R R
from 2,846 in 2023 to 6,193 in 2024 (up to September), with the
S corresponding accumulated loss rising from $1,102.80M to $2,220.80M. S
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A A
B B
58. I am satisfied that from these figures, telephone deception
C cases were and are indeed prevalent and the financial harm caused to the C
community by recent occurrences was and is indeed substantial.
D D
E 59. Although the offence in question here is “attempt to commit E
money laundering” and not “fraud”, I take comfort from what fell from the
F F
Court of Appeal (D Pang J, as he then was, giving the judgment of the
G Court) in Lin Zong Yue (a case of money laundering relating to telephone G
deception), at para 16:
H H
I “… As regards whether or not the sentence should be enhanced, we I
respectfully adopt another observation made in Cen Huakuo, namely that
the court “may … take into account the overall circumstances of the case
J in so far as they are related to the defendant’s culpability”. This means J
that the applicant’s acts were after all an important part of the phone scams,
K
and at the material time phone deception was indeed rampant and caused K
great harm to the community. Therefore, it is appropriate to enhance the
sentence in the present case pursuant to the Organized and Serious Crimes
L Ordinance, as was the case in Cen Huakuo.” (footnotes omitted) L
M 60. Because of the foregoing paragraph, I feel able to enhance the M
sentence of D2 pursuant to section 27(11) of Cap 455.
N N
O O
61. In exercising that power, I deem it appropriate to enhance
P
D2’s sentence after plea, by an extent of 1/3, following the authorities that P
have been referred to either by counsel or myself.
Q Q
R 62. I am satisfied that the final sentence thus arrived at is not R
excessive in the circumstances of the offence and the offender.
S S
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A A
B B
(D2, please stand)
C C
63. For Charge 4, D2 is sentenced to 32 months’ imprisonment.
D D
E E
F F
( Isaac Tam )
G G
District Judge
H H
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K K
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DCCC 1103/2023
C [2024] HKDC 2044 C
D IN THE DISTRICT COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
CRIMINAL CASE NO 1103 OF 2023
F F
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G G
HKSAR
H V H
(2) WONG CHING TUNG
I I
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J J
Before: His Honour Judge Tam
K K
Date: 28 November 2024
L Present: Mr Fung Lap Tin, Leo, Public Prosecutor, for HKSAR L
Ms Lam Siu Yan, Yanky, Counsel instructed by Mike So,
M M
Joseph Lau & Co, assigned by the Director of Legal Aid, for
N N
the 2nd defendant
O
Offences: [3] Conspiracy to defraud （串謀詐騙） O
[4] Attempting to deal with property known or believed to
P P
represent proceeds of an indicatable offence（企圖處理已知
Q 道或相信為代表從可公訴罪行的得益的財產） Q
R R
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S S
REASONS FOR SENTENCE
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B B
1. Before me, D1 1 and D2 2 faced various charges on a
C Charge Sheet as follows. C
D D
2. Charge 1 is Conspiracy to defraud against D1 only,
E contrary to Common Law and punishable under section 159C(6) of the E
Crimes Ordinance, Cap 200. Particulars are that D1, on or about 2 March
F F
2023, in Hong Kong, conspired with other persons unknown to defraud
G Chan Siu by dishonestly and falsely representing that the son of the said G
Chan Siu was in need of money in the sum of $65,000 Hong Kong currency
H H
in cash, thereby to induce the said Chan Siu to part with a total cash sum
I of $65,000 Hong Kong currency; I
J 3. Charge 2 (alternative to Charge 1) is Dealing with J
property known or believed to represent proceeds of an indictable offence
K K
(hereinafter “Money Laundering”) against D1 only, contrary to section
L 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap 455. L
Particulars are that D1, on 2 March 2023, in Hong Kong, together with
M M
other persons unknown, knowing or having reasonable grounds to believe
N N
that property, namely a sum of $65,000 Hong Kong currency, in whole or
O
in part directly or indirectly represented any person’s proceeds of an O
indictable offence, dealt with the said property;
P P
4. Charge 3 is Conspiracy to defraud against D1 & D2.
Q Q
Particulars are that they, on or about 3 March 2023, in Hong Kong,
R conspired together with other persons unknown to defraud Siu Hung Ping R
by dishonestly and falsely representing that the son of the said Siu Hung
S S
T 1
D1 is Wong Yiu Man. T
2
D2 is Wong Ching Tung.
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A A
B B
Ping was in need of money in the sum of $45,000 Hong Kong currency in
C cash, thereby to induce the said Siu Hung Ping to part with a total cash sum C
of $45,000 Hong Kong currency;
D D
5. Charge 4 (alternative to Charge 3) is Attempting to
E E
commit Money Laundering against D1 & D2, contrary to section 25(1) and
F (3) of the Organized and Serious Crimes Ordinance, Cap 455, and sections F
159G and 159J of the Crimes Ordinance, Cap 200. Particulars are that they,
G G
on 3 March 2023, in Hong Kong, together with other persons unknown,
H knowing or having reasonable grounds to believe that property, namely a H
sum of $45,000 Hong Kong currency, in whole or in part directly or
I I
indirectly represented any person’s proceeds of an indictable offence,
J attempted to deal with the said property; J
K K
6. Charge 5 is Failing to surrender to custody without
L reasonable cause against D1 only, contrary to section 9L(1) and (3) of the L
Criminal Procedure Ordinance, Cap 221. Particulars are that he, on 14
M M
May 2024, in Hong Kong, being a person admitted to bail, without
N reasonable cause, failed to surrender to custody as was appointed by a court. N
O O
Procedural history
P P
7. This case was fixed before me for plea and sentence of D1 and
Q Q
D2.
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D1
C C
8. Prior to the hearing date, I have through correspondence asked
D D
for written submissions from relevant parties, relating, inter alia, to the
E propriety of Charge 3 due to the potential issue of “conspiracy to do the E
impossible” in that PW2 Siu did not have a son.
F F
G 9. Prosecution, by way of letter dated 18 November 2024, made G
written submissions on the point.
H H
10. D1, by way of letter of even date, referred to the prosecution’s
I I
said letter and conceded to the prosecution’s position that Charge 3 was
J properly laid, without further submissions of his own. J
K K
11. At the hearing, before pleas were taken from anyone, I
L expressed misgivings about Charge 3 for the same reason as previously L
indicated.
M M
N N
12. I gave time to the prosecution to take instructions from the
O
Department of Justice. O
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13. Upon taking instructions, prosecution informed me that the
Q course chosen was to treat the matter as a not-guilty plea (though no pleas Q
had formally been taken from D1) and a trial date was to be fixed at the
R R
plea court. D1 had no objection to the proposal. A date was then fixed for
S D1 to appear at the plea court for the purpose of fixing a trial date. Before S
D1 was sent back into custody, parties had the consensus that no pleas
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needed to be taken from D1 meanwhile, and that all the charges including
C those that D1 was intending to plead guilty to should be dealt with together. C
D D
14. Before leaving the matter, it ought to be mentioned that
E counsel indicated that D1 was willing to plead guilty to Charge 3 or Charge E
4; however, prosecution indicated that they were not willing to accept D1’s
F F
intended plea to Charge 4.
G G
D2
H H
I 15. D2 pleaded not guilty to Charge 3 but guilty to its alternative I
Charge 4.
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K 16. After convicting D2 of Charge 4, I acquitted him of Charge 3 K
because the prosecution accepted D2’s conviction of Charge 4 as
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satisfaction of the charge sheet as against D2.
M M
Facts admitted by D2
N N
O Charge 4 O
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17. On 1 March 2023, at about 9:30 am, PW2 Siu, then aged 66,
Q received a phone call. A male (“Male B”), who claimed to be a son of Q
PW2, told PW2 that he had changed his phone number.
R R
S 18. PW2 who had no son knew at once it was a scam call. S
However, he went along and made up a fake name “Ah Kuen” as his
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B B
supposed son’s name. PW2 did this in the hope of bringing the culprit to
C justice. C
D D
19. On 3 March 2023, at about 9:45 am, Male B again called PW2
E and claimed that he had been arrested by the police and needed $100,000 E
cash as bail money. Although PW2 had $100,000, he told Male B that he
F F
only had $20,000 to $30,000. Male B replied that $30,000 would be
G sufficient as he could borrow the balance from friends. Male B further said G
that a lawyer friend named Chan Wai would contact PW2 to arrange for
H H
the collection of the money.
I I
20. At about 10 am, it was Male B who called again. Male B
J J
asked if the cash could be collected right away. PW2 replied he would get
K back once the money was ready. K
L L
21. At about 1:15 pm, PW2 reported the case to the police. A
M controlled meeting was prepared for dummy cash (comprising of valueless M
material) to be handed over to the culprit.
N N
O 22. At about 1:40 pm, acting on instructions of the police, PW2 O
got back to Male B indicating falsely that cash was ready. However, at this
P P
point, Male B asked for a larger sum and after some negotiation, the
Q additional amount came down to $15,000. Q
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23. At about 1:45 pm, Male B called again indicating a
S Superintendent Chan would contact PW2 shortly. S
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B B
24. Instead of waiting for the call, PW2 took the initiative to call
C Male B not long afterwards. Male B took up the phone but then passed it C
over to Superintendent Chan who confirmed that Ah Kuen could be
D D
granted bail on condition of $45,000 bail money. Male B spoke again and
E told PW2 not to tell anyone about the matter and said someone would be E
coming to collect the cash from PW2.
F F
G 25. At about 2:26 pm, a male claiming to be Chan Wai called G
PW2 and asked where the bail money could be collected. The parties
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agreed to meet up at the lobby of Block 28 of Heng Fa Chuen.
I I
26. At about 2:40 pm, a Male C and D2 were wandering outside
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Blocks 28 and 29 of Heng Fa Chuen.
K K
27. At about 3:02 pm, Chan Wai called to say he would arrive
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soon.
M M
28. At 3:05 pm, Male C approached PW2 claiming himself to be
N N
Chan Wai. Male C passed to PW2 a mobile phone saying at the same time
O Ah Kuen would like to talk. PW2 picked up the phone and asked the O
opposite party if the cash should be passed over to Male C. After getting
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the go-ahead, PW2 passed over the dummy cash to Male C at the same
Q time asking Male C to take care of Ah Kuen. Male C said he would and Q
left. Male C then walked towards Heng Fa Chuen Post Office with D2
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following him.
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29. A few minutes passed before D2 was stopped and arrested in
C the vicinity. The dummy cash was recovered from a sling bag carried by C
D2. Under caution, he said he was instructed by one “Zero” to collect
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money from Male C and he was promised $500 reward for his labour.
E E
30. D2 knew or had reasonable grounds to believe that the dummy
F F
cash originated from the telephone deception.
G G
31. D2 now admits that, on 3 March 2023, in Hong Kong, he,
H H
together with other persons unknown, knowing or having reasonable
I grounds to believe that property, namely a sum of $45,000 Hong Kong I
currency, in whole or in part directly or indirectly represented any person’s
J J
proceeds of an indictable offence, attempted to deal with the said property.
K K
Criminal record
L L
M 32. D2 has a clear record. M
N N
Antecedents
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33. D2 is aged 25 (23 at the time of the offence), educated to F3
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level, and working as a cook. He has a younger sister studying in college.
Q D2 is living with his divorced mother in public housing in Choi Hung. Q
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Mitigation
C C
34. Ms Yanky Lam of counsel assigned by the Director of Legal
D D
Aid mitigated on behalf of D2. The following is a summary of the
E mitigation submissions. E
F F
35. D2’s parents, maternal grandparents and maternal uncle are in
G court to give D2 emotional support. G
H H
36. D2 pleaded guilty to Charge 4 having indicated the same
I months ago; he is entitled to 1/3 discount on his sentence. D2 has no I
objection to the prosecution’s application regarding enhancement of
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sentence.
K K
37. D2 has a clear record with good character and comes from a
L decent family. D2 feels deeply remorseful for his misdeeds; in particular, L
he feels sorry for the victim.
M M
N N
38. D2 is single and he has been and still is working as a restaurant
O
chef earning $15,000 per month. O
P P
39. D2 has been living with his divorced mother as his younger
Q sister is studying in a university away from Hong Kong. D2’s natural Q
father left the family long time ago so D2 and his younger sister were
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brought up by their mother single-handedly. D2’s step-father passed away
S in January 2024 due to cancer. D2’s mother’s medical condition is stable S
after receiving some medical treatment.
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40. D2’s mother had to take up different jobs to make ends meet.
C Due to heavy workload, she could only spend very little time with D2 and C
his younger sister when they were young resulting in minimum parental
D D
supervision and guidance on them. D2 became introvert and seldom shared
E his inner feelings with his mother in his teenage. D2 mingled with his E
friends and peers and was easily influenced by others.
F F
G 41. D2 was not acquainted with D1 ie Male C before the G
commission of the offence. D2 was asked by a male called “Zero” to
H H
collect money from Male C for a reward of $500. During investigation,
I D2 provided the contact number of Zero to the police. Subsequently, Zero I
was arrested but not charged.
J J
K 42. In HKSAR v Hsu Yu Yi [2010] 5 HKLRD 545, the Court of K
Appeal took into consideration the following:
L L
M “There are no sentencing guidelines for the offence of dealing with the M
proceeds from an indictable offence because the facts vary from case to
case. However, the following factors are to be taken into account when
N determining sentence: N
O O
(a) It is the amount of money involved that is a major consideration and
not the amount of benefit received by a defendant in the transaction.
P P
(b) The culpability of the offence lies in the assistance, support and
Q
encouragement offered to the commission of an indictable offence. So a Q
defendant’s level of participation and the number of occasions on which
he is involved in the “money laundering” activities are relevant factors
R to be considered. R
(c) The offence of dealing with the proceeds from an indictable offence
S S
does not necessarily have any direct correlation with the indictable
offence in question. However if the relevant indictable offence can be
T identified, the court may take into account the sentence imposed on the T
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B indictable offence per se when determining the sentence of the dealing B
offence.
C C
(d) If the case has an international element involving activities carried
out across different regions, the court may impose a more severe sentence.
D This is to protect Hong Kong’s reputation as an international finance and D
banking hub from being tarnished.
E E
(e) The length of time the offence lasted.”
F F
43. In HKSAR v Boma [2012] 2 HKLRD 33, the Court of Appeal
G held that given the highly variable circumstances in which the offence G
might be committed, it was difficult and undesirable to offer guidelines.
H H
This was a category of offence which called for the sentencing judge to
I engage his “feel” for the case and his sentencing experience bearing in I
mind always the mischief at which the legislation was directed. The best
J J
one could do was to draw the attention of judges to relevant sentencing
K considerations (see paras 25, 34 and 39). K
L L
44. Having said so, the Court of Appeal held that it would be
M helpful to identify some of the significant features for which the Court M
should look and take into account, though it is not possible to produce an
N N
exhaustive list:
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(i) The nature of the predicate offence, if known, and the P
penalty available for the predicate offence;
Q Q
R (ii) This brings us to the question of the state of knowledge R
of the offender. This divides itself in two – knowledge
S S
of the nature of the predicate offence, where the
T predicate offence is known to the court; and knowledge T
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of the fact that the funds are the proceeds of an
C indictable offence; C
D D
(iii) An international dimension will always be a significant
E aggravating feature; and by international dimension we E
include money laundered from, or for those operating
F F
in, the Mainland;
G G
(iv) The sophistication of the offence is always relevant.
H H
This will include the degree of planning and whether
I deceit is practiced to achieve the objective; I
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(v) Where the offence is committed by or on behalf of an
K organized criminal syndicate, that is an aggravating fact; K
L L
(vi) It is relevant to take into account whether there is one
M transaction or many and the length of time over which M
the offence was committed;
N N
O (vii) As in the case of Secretary for Justice v Herzberg, it O
will be an aggravating feature where the offender
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continues to launder funds after he has discovered as a
Q fact that the funds are the proceeds of an offence or after Q
he has discovered the nature of an offence which is
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serious; and
S S
(viii) The sentencing court should have regard to the role of
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the offender and the acts performed by him. In this
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regard, the director of a laundering operation or scheme
C should attract a greater sentence than a person engaged C
by him although sentences should be sufficient to deter
D D
those who might be prevailed upon by directing minds.
E In the case of a person down the chain, the Court will E
wish to have regard to whether a benefit has been
F F
received and if so the nature and size of the benefit. But
G within the category of persons down the chain there G
will be gradations of culpability. So for example the
H H
drug addict or petty crook who is paid a small sum to
I open an account and hand over its operation to another I
with no more participation and no more knowledge
J J
than that it is going to be used for some sort of crime is
K much less culpable than an offender of a different sort K
not “used” in that way.
L L
M 45. Phone deception case is more serious than a common street M
deception case and the Court should adopt a higher starting point in
N N
sentencing for deterrence. The Court of Appeal in HKSAR v Hung Yung
O Chun [2011] 2 HKLRD 174 at para 182 held that the starting point for the O
case should be 4 years’ imprisonment.
P P
Q 46. There is nothing to suggest that D2 participated in the Q
telephone deception ie the 3rd Charge. The prosecution evidence was
R R
insufficient to show that D2 knew the details of the deception although
S admittedly he must have known the money was obtained unlawfully. No S
international dimension was involved. Save and except knowing Male C
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was involved, D2 would not know the details of the deception or who [else]
C was involved and thus it was not suggested that the offence was committed C
by or on behalf of an organized criminal syndicate. D2 was asked to collect
D D
money from Male C (not even from the victim direct). The amount of
E money laundered is not the be-all and end-all of a case but is a significant E
feature. The money involved in the present case was $45,000. It was too
F F
harsh to apply a starting point of 4 years: HKSAR v Cen Huakuo [2015] 2
G HKLRD 951. A starting point of 3 years involving the amount of $50,000 G
in that case was adopted.
H H
I 47. Ms Lam submitted on behalf of D2 a total of 13 mitigation I
letters written in Chinese by respectively (1) D2 himself; (2) his mother;
J J
(3) his younger sister; (4) his maternal grandfather; (5) his maternal uncle;
K (6) his maternal uncle-in-law; (7) another maternal uncle-in-law; (8) his K
maternal younger aunt; (9) a family friend; (10) his employer; (11) a friend;
L L
(12) a secondary-school mate cum good friend; and (13) another friend.
M The contents are generally that D2 has determined to change his ways and M
start afresh; that he is a gentle and helpful person who was respectful to
N N
elders and possessed good work ethics. The letter writers ask for a lenient
O sentence for D2 so he may become a useful member of society sooner. O
P P
48. Upon enquiry by the court about the topic of joint enterprise,
Q Ms Lam submitted that the role played by D2 was passive and minimal, Q
and he was not the ringleader.
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Sentence
C C
49. I have had regard not only to the authorities cited by Ms Lam,
D D
but also two other authorities of the Court of Appeal, namely HKSAR v Lin
E Zong Yue (official English translation), CACC 141/2014, and HKSAR v E
Chan Ho Kit (transliteration), CAAR 1/2024, [2024] HKCA 409, Chinese
F F
Reasons for Judgment.
G G
50. In the present case, D2 knew or had reasonable grounds to
H H
believe that the dummy cash he dealt with (by implication, the $45,000 he
I attempted to deal with) originated (unlawfully) from the telephone I
deception: Re-re-amended Summary of Facts para 23. So, he must have
J J
had at least some basic idea of the kind of evil or harm that was designed
K and exercised against the victim whom D2 would have witnessed and K
identified as a senior citizen at the scene of transfer of the dummy cash to
L L
Male C with whom D2 collaborated.
M M
51. Therefore, although this case lacks one particular aggravating
N N
feature present in Cen Huakuo (where the applicant came from the
O Mainland to commit crime here), I am of the view that the 3 years starting O
point adopted by the Court of Appeal on appeal for one charge of
P P
conspiracy to commit money laundering is still applicable to the present
Q case. Q
R R
52. For the avoidance of doubt, the 3 years starting point I have
S adopted already has the element of joint enterprise factored into the S
assessment.
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C 53. D2 pleaded guilty to the offence in good time and therefore C
enjoys the customary 1/3 discount on sentence. As the applicant in Cen
D D
Huakuo (see para 24 thereof), D2 cannot expect leniency from the court
E simply because he has no criminal record. In this type of case, the court E
would be slow to grant extra sentencing discount to a defendant with a
F F
previous clear record.
G G
54. There are no other mitigating factors of weight to justify any
H H
further sentence reduction.
I I
55. Pursuant to section 27(2) of the Organized and Serious Crimes
J J
Ordinance, Cap 455, the prosecution has sought to furnish information to
K the court relating to the prevalence of the offence subject of Charge 4 (sic); K
and the nature and extent of any harm, whether direct or indirect, caused to
L L
the community by recent occurrences of the said offence (sic).
M M
56. The information came in the form of a witness statement dated
N N
28 October 2024 under the hand of CIP Cheng Sze Wai relating
O specifically to telephone deception cases rather than to the offence subject O
of Charge 4.
P P
Q 57. From the table drawn up in para 21 of the statement, it can be Q
seen that the number of telephone deception cases with monetary loss went
R R
from 2,846 in 2023 to 6,193 in 2024 (up to September), with the
S corresponding accumulated loss rising from $1,102.80M to $2,220.80M. S
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B B
58. I am satisfied that from these figures, telephone deception
C cases were and are indeed prevalent and the financial harm caused to the C
community by recent occurrences was and is indeed substantial.
D D
E 59. Although the offence in question here is “attempt to commit E
money laundering” and not “fraud”, I take comfort from what fell from the
F F
Court of Appeal (D Pang J, as he then was, giving the judgment of the
G Court) in Lin Zong Yue (a case of money laundering relating to telephone G
deception), at para 16:
H H
I “… As regards whether or not the sentence should be enhanced, we I
respectfully adopt another observation made in Cen Huakuo, namely that
the court “may … take into account the overall circumstances of the case
J in so far as they are related to the defendant’s culpability”. This means J
that the applicant’s acts were after all an important part of the phone scams,
K
and at the material time phone deception was indeed rampant and caused K
great harm to the community. Therefore, it is appropriate to enhance the
sentence in the present case pursuant to the Organized and Serious Crimes
L Ordinance, as was the case in Cen Huakuo.” (footnotes omitted) L
M 60. Because of the foregoing paragraph, I feel able to enhance the M
sentence of D2 pursuant to section 27(11) of Cap 455.
N N
O O
61. In exercising that power, I deem it appropriate to enhance
P
D2’s sentence after plea, by an extent of 1/3, following the authorities that P
have been referred to either by counsel or myself.
Q Q
R 62. I am satisfied that the final sentence thus arrived at is not R
excessive in the circumstances of the offence and the offender.
S S
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A A
B B
(D2, please stand)
C C
63. For Charge 4, D2 is sentenced to 32 months’ imprisonment.
D D
E E
F F
( Isaac Tam )
G G
District Judge
H H
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